Use and Misuse of AFSPA: A failed application of 60 years?
Authors: Harshit Bhimrajka,
Rachit Somani,
NLU, Patiala(Rajiv Gandhi National University of Law).
Abstract- The article deals with a detailed account of the Armed Forces (Special Powers) Act, 1958(AFSPA) and how it has unfolded in India. It starts with its history of implementation because of President’s ordinance and then in various states across India according to the need. Further, it talks about the purpose for which this act was brought and why it was so crucial. The power this act provides to Governors, Central Government and Armed Forces (regarding declaration of ‘disturbed areas’ and what all army recruits can do through it). Several different reports from international organisations and view-points of renowned scholars in the field is followed by real and reported episodes of act of barbarity and wickedness on citizens which gives quite a practical picture of on-ground reality. A legal study on one of the landmark cases on AFSPA and other than this the role played by government in implicitly being a silent spectator is also discussed. Lastly, it talks about how grossly the law has been misused and what is the current status of AFSPA in various states of India based on the committee (made specifically to review AFSPA) reports.
The Armed Forces (Special Powers) Act, 1958 (AFSPA) was preceded by the Armed Forces (Assam and Manipur) Special Powers Ordinance 1958. The Ordinance gave the armed forces certain special powers in the ‘disturbed areas’ of Manipur and Assam. Armed Forces (Special Powers) Act, 1958 was passed by the Indian Parliament on 11th September 1958 can be said to be one of the draconian laws in independent India’s history.[1] Under this act, all security forces are given paramount amount of power to carry out the operations, in an area which is recognized as “disturbed” by the Governor of that state or the Administrator of that Union Territory or the Central Government. Disturbed area “is of the opinion that the whole or any part of such State or Union Territory, as the case may be, is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary…”.
The AFSPA gives the armed forces powers to arrest, shoot and search, all in the name of “aiding civil power.”[2] Under Section 4 of the AFSPA, an authorised officer in a disturbed area enjoys certain powers. The authorised officer has the power to open fire at any individual even if it results in death if the individual violates laws which prohibit (a) the assembly of five or more persons; or (b) carrying of weapons. However, the officer has to give a warning before opening fire.[3] The enforcement of the AFSPA has resulted in inestimable incidents of arbitrary detention, rape, torture, and looting by security personnel. It was first enforced in Assam and Meghalaya[4] but it was extended to all the states included in “seven sisters” namely Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland, Tripura. Further ahead, another full-fledged act was made in 1983 to apply it in Punjab and Chandigarh and then in 1990 to enforce it in Jammu and Kashmir.
Wajahat Habibulla, was the chairperson of the National Commission for Minorities, contends that the AFSPA is in violation o
f Article 21 of the Indian Constitution, which entails a fundamental right – Right to Life.[5] He makes a case for the revocation of AFSPA, in its present form, and further argues that if the law has to be retained, it must be changed “in full conformity with the principles of its functioning, including the principles of CrPC, laid down by the Supreme Court.”[6] Although, the Supreme Court has upheld the constitutionality of AFSPA in a 1998 judgement Naga People’s Movement of Human Rights v. Union of India.[7] The court held that “Armed Forces (Special Power) Act, 1958 is not a colourable piece of legislation as Parliament was competent to legislate it.”
f Article 21 of the Indian Constitution, which entails a fundamental right – Right to Life.[5] He makes a case for the revocation of AFSPA, in its present form, and further argues that if the law has to be retained, it must be changed “in full conformity with the principles of its functioning, including the principles of CrPC, laid down by the Supreme Court.”[6] Although, the Supreme Court has upheld the constitutionality of AFSPA in a 1998 judgement Naga People’s Movement of Human Rights v. Union of India.[7] The court held that “Armed Forces (Special Power) Act, 1958 is not a colourable piece of legislation as Parliament was competent to legislate it.”
A detailed report was released by Amnesty International that called for an end to the use of the AFSPA in Jammu and Kashmir on the basis of 58 case studies of alleging excess power by Armed Forces in the state. The report — “Denied: Failures in accountability for human rights violations by security force personnel in Jammu &Kashmir”[8] recommends that country withdraw AFSPA, turn over cases of human rights violations and invite the UN Working Group to visit with “unimpeded access” to witnesses and victims. “By not addressing human rights violations committed by security force personnel in the name of national security, India has not only failed to uphold its international obligations, but has also failed its own Constitution,” said Minar Pimple, senior director of global operations at Amnesty International, while releasing the report in New Delhi on Wednesday. “Impunity only breeds further violence and alienation, making it more difficult to combat abuses by armed groups,” he said. It also suggests that the Indian government has neutralized all the allegations with AFSPA’s Section 7 (current status- repealed by Act 58 of 1960, Section 2 and Schedule I), which allows the armed forces to kill anyone on the basis of a mere suspicion.
Certain incidences have earned AFSPA a bad name and rightly so. The almost absolute power which AFSPA provides to the armed forces can be very well understood by George Orwell’s quote that “Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship.” Operation Blue Bird[9] which was launched in 1987 at Oinam, Manipur, where more than 25 Naga villages were covered and human rights violations including extrajudicial killings and torture were done in addition to sexual harassment, loot, and theft by security personnel. In a petition filed by The Naga Peoples’ Movement for Human Rights (NPMHR), it was reported that houses were burnt and pull apart, many women were raped and tortured and people got killed in fake encounters (type of extrajudicial killings). This operation continued for many days, the whole area was secluded and in a jailed condition where even civil administrative authorities were not permitted to go. Cases were filed in courts, even registrar of a high court was denied to go to record the statements, but so far nothing happened.[10]
On 23rd February 1991, a search operation was conducted by Indian army in Kunan Poshpora village of Kupwara district, J&K. During this operation, almost 100 women including pregnant women were allegedly raped by army personnel in front of the villagers. No adequate inquiry was made by the government regarding this violation. Later in the year 2014, the police officer who visited the village to record the testimony of the victims told that he was threatened to not to make the report public. The government tried its best to make this case ‘baseless’ and, Chief Justice of J&K High Court in his findings told that he never saw such a case where even normal investigative procedures were ignored. A case is still running in Supreme Court on this issue.[11]
On 22 October 1993, roughly 35 civilians got kill
ed when BSF open-fired upon crowd during a protest. It was alleged that firing was unprovoked and done while the protest was peaceful. Magistrate inquiry and NHRC findings marked that the firing was unprovoked. J&K High Court also accepted the reports and findings and ordered compensation to victims and their families. It is not clear if the case against BSF personnel was sent to grant sanction for prosecution, but till now no such prosecution was done.[12]
ed when BSF open-fired upon crowd during a protest. It was alleged that firing was unprovoked and done while the protest was peaceful. Magistrate inquiry and NHRC findings marked that the firing was unprovoked. J&K High Court also accepted the reports and findings and ordered compensation to victims and their families. It is not clear if the case against BSF personnel was sent to grant sanction for prosecution, but till now no such prosecution was done.[12]
On the night of 10th July 2004, when Assam Rifles went to the house of Manorama at Imphal tortured her at her house before her mother and brother, then picked her up. In the morning, the dead body was found at Ngariyan Yairipok road with bullets injuries in her private parts. A massive protest was organized by people, even the infamous naked protest also happened but the case under criminal charges could not be lodged. A local judicial inquiry was done but the report was not made public. A PIL in Supreme Court of India is still going on but no verdict has been awarded yet.[13]
In the year 2008-09, mass graves of approximate 3000 unmarked persons were found in Bandipora, Baramulla, Kupwara and other districts. It was believed that most of these graves may belong to people who have been killed and buried by security personnel without any accountability under AFSPA. It was also believed that there may be persons who are reported as ‘disappeared’, as thousands of cases of disappearances are recorded. The State Human Rights Commission confirmed that thousands of bullet-ridden bodies buried in unmarked graves. Some 500 bodies are identified as ‘locals’ and not the ‘foreign militants’ as it was told by security agencies.[14]
These incidents are just tip of an iceberg and there is ample possibility of many more which couldn’t have been reported. No offense to our armed forces, who are loved and respected all across our country and for whose protection this piece of legislation was made, has targeted the very citizens for whose protection they were appointed in the first place. It cannot be contended over here that only these are the exceptional cases because there are hundreds of them, proved, disproved, covered, not covered. Ian Fleming, in his novel Goldfinger, 1959 says “Once is happenstance. Twice is coincidence. The third time its enemy action.” The atrocities which the citizens of North-Eastern states and Jammu and Kashmir have gone through are beyond imagination and something which only an enemy might do.
These instances narrate a clear story how AFSPA has been misused by the military and government had indirectly supported them, there are numerous instances which highlights the wrong doing in garb of AFSPA. Even after various protests, warnings and several heart-wrenching reports by various human rights organizations no steps are taken by the government to either remove it or make some amendments in it which gives unlimited powers even to a non-commissioned officer over the citizens of a particular area recognized as “disturbed” by these authorities only. It made the army officers what they want to do, even not complying with the orders of the judiciary.
In spite of all hue and cry by human rights organizations and local people, no concrete action has been taken yet from the side of government. Indian army in its own inquiry under many cases have found various soldiers guilty and in November 2014 sentenced life imprisonment to two officers and five soldiers in the court-martial for being guilty. It was told that these army personnel murdered these civilians, painted their face black, had put the guns and told them ‘foreign militants’ to get rewards and remunerations under ‘anti-militancy operations.’
In the case of Luithukla v. Rishang Keishing, (1988)[15] the Court said that the army may not act independently of the district administration. Repeatedly, the Guwahati High Court has told the army to comply with the Code of Criminal Procedure (CrPC), but there has been no enforcement of these rulings. Army officers have accused High Court judges of weakening military powers in the North East, exemplifying that the armed forces are not interested in complying with civil law standards. Any attempt by the courts t
o oblige compliance with police procedure is ignored.
o oblige compliance with police procedure is ignored.
On November 19, 2004, the Central government appointed a five-member committee headed by Justice B P Jeevan Reddy to review the provisions of the act in the north eastern states. The committee submitted its report in 2005, which included the following recommendations: (a) AFSPA should be repealed and appropriate provisions should be inserted in the Unlawful Activities (Prevention) Act, 1967; (b) The Unlawful Activities Act should be modified to clearly specify the powers of the armed forces and paramilitary forces and (c) grievance cells should be set up in each district where the armed forces are deployed.[16]
Current status of AFSPA in north-eastern states stands something like this- it has been totally removed from Meghalaya, partially from Arunachal Pradesh (three out of nine districts, districts on Myanmar border are still kept under its ambit)[17] and it ceded its power in Assam in September 2017 and the decision was left on the State government to decide on its applicability. Latest reports suggest that AFSPA is still regulated and extended in Assam for six months starting from 28 August.[18]
The act which was made by our Parliamentarians with the intent of giving unlimited powers to armed forces during periods of aggression is used by them to brand common people as ‘anti-national’, ‘militant’, ‘insurgent’, ‘urban-naxal’ and a by-way to infuse their own aggression in very horrible ways. The aim of this law has been successfully shattered with the various shocking cases which come to light. According to an RTI reply, between 2012 and 2016, a total of 186 complaints of human rights abuses by defence personnel were recorded in states where the Armed Forces (Special Powers) Act, 1958 is in force, with the troubled state of Jammu and Kashmir accounting for almost half the complaints.[19]
“An unjust law is itself a species of violence. Arrest for its breach is more so.”
-Mahatma Gandhi
[1] https://www.gktoday.in/question/in-which-among-the-following-states-armed-forces-s.
[2] Asit Das, A note on the AFSPA, 17 December 2011.
http://sanhati.com/excerpted/4420/
[3]Pallavi Bedi, “All you wanted to know about the AFSPA”, Nov 16, 2011.
http://prsindia.org/media/articles-by-prs-team/all-you-wanted-to-know-about-the-afspa-2051
[4]
[5] V Chadha, Armed Forces Special Powers Act The Debate, 7 November 2012.
https://idsa.in/system/files/Monograph7.pdf
[6] ibid.
[7] Naga People’s Movement of Human Rights v. Union of India, (1998) 2 SCC 109 : AIR 1998 SC 431.
[8] https://www.amnesty.org/en/documents/asa20/1874/2015/en/
[9] Isaac Varay, After 32 Years, Survivors Of The Horrific Operation Bluebird In Manipur Still Await Justice.
https://youthkiawaaz.com/2019/07/who-remembers-the-hellish-operation-bluebird-of-manipur/
[10] India “Operation Bluebird” A Case Study Of Torture And Extrajudicial Executions In Manipur, Amnesty International, 31 October 1990.
https://www.amnesty.org/download/Documents/ASA200171990ENGLISH.PDF.
[11] Ravi Nitesh, “Ten Cases Under AFSPA You Should Know About”, 17 November, 2014. https://www.countercurrents.org/nitesh171114.htm.
[12] Amnesty International Report 1994- India.
https://www.refworld.org/docid/3ae6a9f56e.ht
[13] Krishnadas Rajagopa, Manorama ‘mercilessly tortured’, 13 June 2016.
[14] Gaurav Hooda, “AFSPA: Tyranny In The Name Of National Security”, November 14, 2015 .
https://www.lawctopus.com/academike/afspa-tyranny-name-national-security/
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[15] Luithukla v. Rishang Keishing, (1988) 2 Gau LR 159.
[16] Sushantu Tulakdar, The States- defining act, 8 October 2010.
[17] PTI, “AFSPA withdrawn partially from Arunachal Pradesh”
//economictimes.indiatimes.com/articleshow/68687005.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[18] PTI, “AFSPA in Assam extended for six months from August 28”, SEPTEMBER 07, 2019
https://www.thehindu.com/news/national/other-states/afpsa-in-assam-extended-for-six-months-from-august-28/article29361803.ece
[19] 186 cases of abuse in AFSPA enforced states in 4 yrs
Rumu Banerjee ,Jul 15, 2017,
https://timesofindia.indiatimes.com/india/186-cases-of-abuse-in-afspa-enforced-states/articleshow/59603418.cms